Nelson v. Howard

Le Grand, C. J., delivered the opinion of this court. This is an action of indebitatus assumpsit, and was instituted by the appellee, who was the plaintiff below, to recover a sum of money from the appellant, as executor of James, which he claimed to have been in the hands of James at the time of his death, and as belonging to him. The evidence in the cause shows, that the appellee executed two deeds of trust to the testator of the appellant, one in 1845 and the other in 1846. The purpose of these deeds was to secure the payments of the debts due by the appellee, which is fully expressed in them, and then provide, if there should be any balance of the proceeds of sales remaining, that it should "be paid over to the said Richard Howard,” the plaintiff.

The appellee contends there was a balance so remaining, and that James promised to pay it. On the part of the appellant the claim is resisted, on the ground that there was no settlement of the trust and no adjustment between the parties of any balance, and no promise made to pay any; and therefore, whatever may be the true state of the trust funds, a court of law has no jurisdiction of the matter; in other words, if there be any claim it is of an equitable, and not of a legal, character, and if enforced can only be so by a court of equity. There can be no doubt in this State as to the principles of law which must govern the decision of this case. It is unquestionably true, that to enable the plaintiff to recover in this action, he must show that there had been an adjustment of the accounts between the parties and a promise to pay the amount ascertained to be due.

Unless he can do this he has no standing in a court of law. On the other hand, if he can make out these facts, there is no difficulty in regard to the jurisdiction of a court of law. So long as the amount of indebtedness was undecided and an absence of a promise to pay, ³³² the matter remained one only cognizable by a court of equity; but whenever these facts are established as between the parties, a paramount legal title results to the promisee, which enables him to proceed in a court of law. This being the undisputed law applicable to the case, the matter for our determination is one purely of fact, and therefore to be settled by the evidence in the cause.

It appears from the evidence of Mr. Luckett, that at the instance of Mr. James he prepared from vouchers and papers furnished by Mr. James, a “statement of an account between the creditors of Richard Howard and Sir Pratby James, Esq., trustee.” The witness also proved, that the whole of the account was supervised by Mr. James, and was, with but few exceptions, in the handwriting of witness. The account, as prepared by Mr. Luckett, concludes with these words: “Leaving as balance, payable by trustee to cestui que trust, Richard Howard, $256.31.” The words which follow these, and proved by another witness to be in the handwriting of Mr. James, are, “to two judgments paid Thos. E. D. Poole, not in the above, $27.43 — balance payable as above, $228.88 — error in calculation on Rockwell’s judgment, $3.68 — $225.20.” In addition to